Occasionally, a post gets stuck in the pipeline, passed over by current events.
This is one such post, yet the substantive issues remains relevant.
This February 2016 Wall Street Journal article stated – regarding the government’s effort to find individuals criminally responsible for BP’s 2010 oil spill and how individuals criminally charged were found not guilty:
“the outcome of individual cases means BP is in the odd position of having pleaded guilty to crimes tied to charges against its employees that were dismissed by courts.”
As highlighted in this post, this is not exactly an odd position. Indeed, it occurs with some frequency in the Foreign Corrupt Practices Act context.
Examples of individuals who prevailed against the DOJ in contested FCPA actions yet resulted in the individual’s employer resolving FCPA enforcement actions based on the same conduct are set forth below.
While the six examples may not seem numerous, keep in mind that DOJ corporate FCPA enforcement actions rarely result in related criminal charges against individuals. In other words, it is not often that the described dynamic even has a chance of playing out.
George McLean / International Harvester
As highlighted in posts here, here and here, George McLean prevailed against the DOJ in the early 1980’s even though his employer International Harvester Corp. pleaded guilty to the same core conduct.
Arthur Klein / Thomas Spangenberg / Young & Rubicam
As highlighted in this post, upon being criminally charged by the DOJ in the late 1980’s Arthur Klein and Thomas Spangenberg mounted a legal defense. On the eve of the trial, the DOJ pulled the case. Klein and Spangenberg’s employer, Young & Rubicam, pleaded guilty to the same core conduct alleged in the individual action.
Richard Liebo / Napco International
Largely analogous, as highlighted in this post Richard Liebo fought back when criminally charged by the DOJ in the 1980’s. At trial, the jury considered 19 charges against Liebo (on the first day of trial, the court granted the DOJ’s motion to dismiss one of the false statement charges) and he was acquitted of 17 charges. Liebo’s employer, Napco International, pleaded guilty to the same core conduct alleged in the Liebo action. As noted in the post, Liebo was convicted of one count of violating the FCPA’s anti-bribery provisions. The FCPA charge related to the payment of $2,028 for airline tickets for honeymoon travel of an alleged “foreign official.” In a rare FCPA appellate court decision, the Eight Circuit granted Liebo’s request for a new trial and in the retrial he was convicted of the FCPA offense.
Vernon Tull / John Blondek / Eagle Bus
As highlighted in this post, Vernon Tull and John Blondek put the DOJ to its burden of proof in an FCPA action in the early 1990’s. Tull and Blondek were acquitted on all charges even though their employer Eagle Bus consented to a civil injunction enjoining FCPA the company from future FCPA violations based on the same core conduct.
Si Chan Wooh / SSI International
As highlighted in this post, in 2007 Si Chan Wooh, an employee of SSI International, a wholly-owned subsidiary of Schnitzer Steel, was criminally charged and pleaded guilty plea. Thereafter however, as reported in this Wall Street Journal Corruption Currents story, “the Justice Department informed Wooh’s counsel that a Federal Bureau of Investigation agent assigned to the investigation of Schnitzer and its employees had written a letter to high-ranking prosecutor in Washington saying Wooh should not have been charged in connection with the case.” In October 2011, in this filing the DOJ moved to dismiss the case “out of prosecutorial discretion in the interests of justice and the efficient use of government resources.” Wooh’s employer pleaded guilty to FCPA violations based on the same core conduct alleged in the Wooh action.
John O’Shea / ABB
As highlighted in this post, John O’Shea fought back against the DOJ after being criminally charged with FCPA violations in 2009. At trial, after the close of the DOJ’s case, the judge granted a defense motion of acquittal and found O’Shea not guilty of all FCPA charges. O’Shea’s employer, ABB, pleaded guilty to FCPA violations based on the same core conduct.
In short, there have been several examples – spanning the nearly 40 years of the FCPA – of individuals prevailing over the DOJ even though the individual’s employer pleaded guilty to FCPA violations based on the same core conduct.
What accounts for this dynamic?
Why in the FCPA context has the DOJ failed to secure convictions against individuals for the same conduct their business organization employer agreed to plead guilty to and/or resolve?
For clues, you may want to check out this article, previous posts (here and here) highlighting the views of former DOJ enforcement attorney Matthew Fishbein and previous posts (here and here) highlighting the views of former Deputy Attorney General David Ogden.